Exhibit
10.79


CONFIDENTIAL


TCBY SYSTEMS, LLC


Distribution Service Agreement


with
Lincoln Poultry and Egg Company


January 15, 2007



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DISTRIBUTION AGREEMENT


THIS
AGREEMENT is  made
and entered into as of the 15th day of January, 2007, by and between TCBY SYSTEMS, LLC, a Delaware limited
liability company (“COMPANY”) and LINCOLN
POULTRY AND EGG COMPANY, a Nebraska Corporation (“DISTRIBUTOR”).
DISTRIBUTOR will commence distribution services under this Agreement on March
26, 2007 (the “Effective Date”) unless otherwise mutually agreed upon by the
parties.


RECITALS


A.            The COMPANY is engaged
in the worldwide business of franchising or licensing retail TCBY Stores and
other related concepts (“Franchised Stores”). COMPANY also has several
COMPANY-owned stores that it supports directly (“Company Stores”). The
Franchised Stores and or individual franchisees (the “Franchisees”) function as
independent companies and are individually and solely responsible for the
activities at each location, including purchasing needed products and supplies,
which includes responsibility for purchasing from DISTRIBUTOR. COMPANY is
responsible for activities at its Company Stores. Company Stores and Franchised
Stores are jointly referred to herein as “Stores”, the Franchisees and
individuals responsible for Company Stores are jointly referred to as (“Operators”)
and the combined efforts of the COMPANY and its Franchisees is referred to as
the “System”. COMPANY takes steps to assist Stores to meet its purchasing needs
and has the right to designate distributors and suppliers for the System.


B.            The DISTRIBUTOR is
engaged in the business of purchasing, selling, distributing and delivering
food service products (including the Products, as defined below). In connection
therewith, the DISTRIBUTOR manages, controls, prepares and furnishes reports to
its customers concerning the inventories of products and supplies the
DISTRIBUTOR purchases, manages and controls for sale, distribution and delivery
to its customers.


C.            COMPANY wishes to
appoint DISTRIBUTOR as a distributor of certain approved proprietary food and
related products to the Stores located within the Territory (as defined below),
and DISTRIBUTOR wishes to accept such appointment, all on the terms and
conditions hereinafter set forth.



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AGREEMENT


NOW, THEREFORE, in
consideration of the mutual covenants herein set forth and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:


1.             Appointment
- Subject to all terms and conditions of this Agreement, COMPANY hereby
appoints DISTRIBUTOR as a distributor of the products within the product
categories listed in Schedule 1 (the
“Products”), to the Stores in the territory serviced by DISTRIBUTOR’s
distribution center located in Lincoln, Nebraska (the “Territory”) as reflected
in the map depicted in Schedule 2
and DISTRIBUTOR hereby accepts such appointment. This Territory includes the
entire state of Iowa; the portions of the states of North Dakota, South Dakota
and Nebraska east of US Highway 83 but including the cities of Minot and
Bismarck, North Dakota, Pierre, South Dakota and North Platte, Nebraska; the
portion of the state of Minnesota south of US Highway 12 but including the
greater metropolitan areas of Minneapolis and St. Paul Minnesota and the city
of Quincy, Illinois. Subject to Section 2.02, COMPANY may appoint DISTRIBUTOR
as a distributor of Products to Stores outside of the Territory and DISTRIBUTOR
may agree to such designation.


2.             Distribution of
Products


2.01        Products - DISTRIBUTOR
will maintain in its inventory of Products the following: (i) Products
designated by COMPANY that contain the proprietary trademarks, service marks,
logos or labels of COMPANY or any of its affiliates or that are made pursuant
to specifications provided by COMPANY, its affiliates, or licensors for limited
distribution to Operators (defined below) or other entities licensed by
COMPANY, its affiliates or licensors (“TCBY Branded Products”), and (ii) other
supplies or other national or regional branded Products designated or
contracted for by COMPANY to be maintained in inventory by DISTRIBUTOR for
distribution to COMPANY, its affiliates and the Operators. (Collectively,
Products described in clauses (i) and (ii) are referred to as “Proprietary Products”).
DISTRIBUTOR will also maintain in its inventory non-proprietary Products which
DISTRIBUTOR stocks in its inventory for sale to COMPANY, its affiliates and its
Operators. DISTRIBUTOR shall not be required to maintain more than two hundred
(200) Proprietary Products in inventory at any time. All Coca Cola Products
carried for COMPANY shall be excluded from the calculation of the number of
Proprietary Products.


2.02        Approved Operators
- DISTRIBUTOR shall sell and deliver to Franchisees and Operators of Stores
approved by COMPANY and located within the Territory such quantities of the
Products



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(subject to minimum Product order requirements) as the
Operators may order from time to time during the term of this Agreement.
DISTRIBUTOR shall cease selling TCBY Branded Products to any Operator not later
than three (3) days following receipt of written notice from COMPANY advising
DISTRIBUTOR that such Operator is no longer approved by COMPANY and shall,
within such timeframe, further cease selling, under the terms of any supplier
agreement negotiated by COMPANY, all Proprietary Products to such Operators
referenced in such notice. In addition, DISTRIBUTOR shall have the right to
cease the sale and distribution of Products to any Operator (a) who is in default
of its obligations to DISTRIBUTOR, provided that DISTRIBUTOR has given COMPANY
at least three (3) business days notice of such default before ceasing
deliveries to such Operator, or (b) who has filed a voluntary petition in
bankruptcy or under any other similar insolvency or debtor relief law or who
has had such a petition filed against it, or who has made a general assignment
for the benefit of its creditors. COMPANY shall also have the right to
reinstate delivery to any Operator that COMPANY previously stopped selling by
providing written notice to DISTRIBUTOR and DISTRIBUTOR shall provide such
delivery as soon as mutually agreed between the parties.


A list of the present Operators with Stores located
within the Territory and approved by COMPANY and their respective Store
locations is attached hereto as Schedule 3.
During the term of this Agreement, COMPANY shall maintain and provide to
DISTRIBUTOR a current list of all Operators with Stores within the Territory
who have been approved by COMPANY for distribution of the Products under this
Agreement. DISTRIBUTOR shall have the right to rely upon such list, as amended
or modified by COMPANY in writing from time to time, in performing its
obligations under this Agreement. COMPANY shall notify DISTRIBUTOR of new
Stores within the Territory not less than fourteen (14) days prior to the
desired date of first shipment of Products to any such new Stores. In addition,
provided and to the extent that COMPANY and DISTRIBUTOR mutually agree in
writing, DISTRIBUTOR shall provide distribution services to Stores located
outside the Territory, as designated by COMPANY.


COMPANY represents and warrants that the terms of this
Agreement, as and if amended in the manner permitted under this Agreement, are
binding upon and shall govern DISTRIBUTOR and COMPANY’s obligations with
respect to distribution services performed by DISTRIBUTOR hereunder and that
each Franchisee that is an owner or operator of a Franchised Store within the
System shall be bound by the terms of this Agreement, as it may hereafter be
amended, upon such Operator’s purchase of Proprietary Products from
DISTRIBUTOR.


2.03        Product Orders - All Product orders
shall be submitted by the Operators to DISTRIBUTOR and shall specify the
location of the Operator’s Stores, the type of Product, and the quantity
desired.



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Operators may place orders electronically (“Electronic
Orders”) or by telephoning or faxing DISTRIBUTOR’s customer service center in
accordance with the guidelines detailed below. All shipment expenses from DISTRIBUTOR’s
distribution center to the Operator’s location shall be at DISTRIBUTOR’s
expense unless otherwise noted elsewhere in this Agreement. Product order
guides will be provided by DISTRIBUTOR to the Operators monthly via DISTRIBUTOR’s
website and with a hard copy delivered to each Store, with availability of such
order guides to be made prior to the beginning of the month, but only after
review and approval of the order guide by COMPANY. The order guides will be
organized by Product categories and will include, among other things, the
Product Sell Price (as defined herein), Product units and new Products.
DISTRIBUTOR will assign one product code number to each stock-keeping unit (“SKU”)
of each Product, which will be common throughout its entire distribution system
and will be used on all documents such as order guides, invoices, monthly
reports, etc. SKU’s, and, accordingly, the assigned product code number, must
differ for equivalent Products supplied by different suppliers. DISTRIBUTOR will
utilize the existing TCBY product item numbers. Only Products approved for sale
to its Operators by the COMPANY will be listed on this order guide. Electronic
Orders will be placed via internet using DISTRIBUTOR’s web-site. All Electronic
Orders are subject to the standard order cut-off time of 4:00 p.m. local time,
two (2) days prior to their scheduled delivery day. Operators will have until
5:00 p.m. local time, two (2) days before their order shipping day to modify or
add-on to their order. Orders not placed electronically may be subject to
earlier cut-off times than those established above as mutually agreed upon
between COMPANY and DISTRIBUTOR. Operators will be notified prior to 10:00 a.m.
the day after their order cut-off if a product is expected to be out of stock
so that an alternative may be ordered, subject to the provisions of Section
3.02. Notwithstanding the foregoing, Stores that have a scheduled delivery day
of Monday, must have their orders placed by 12:00 p.m. local time, on the
preceding Saturday and Stores that have a scheduled delivery day of Tuesday
must have their orders placed by 12:00 p.m. local time, on the preceding
Sunday.


DISTRIBUTOR may schedule
deliveries at any time and day of the week. However, where reasonably possible,
DISTRIBUTOR will schedule ordering days and delivery days that are mutually
agreed upon by and between DISTRIBUTOR and each Operator and will provide
notice to the affected Operator at least fourteen (14) days before routing
changes. On an exception basis, DISTRIBUTOR will consider shortening the
permissible time frames for scheduled deliveries for those Operators that,
given unique and compelling business needs, require the same.


2.04        Deliveries. Delivery
vehicles used by DISTRIBUTOR will only display the marks of DISTRIBUTOR, except
for locations that cannot accommodate delivery by DISTRIBUTOR’S



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existing tractor trailers or in the instances where
recovery deliveries are made by outside services or DISTRIBUTOR has the need
for temporary short term rental equipment.


DISTRIBUTOR agrees that, excluding key drops
(deliveries scheduled to be made during the period running from one (1) hour or
more after the retail closing time of the Store to deliveries one (1) hour or
more before the retail opening time of the Store), an overall average of 90% of
all regularly scheduled deliveries will be made within a two (2) hour window,
meaning no earlier than one (1) hour before and no later than one (1) hour
after the scheduled delivery time. If a delivery is anticipated to fall outside
of this two (2) hour window, DISTRIBUTOR will immediately notify the Operator.
DISTRIBUTOR will provide an inside delivery to each Operator in accordance with
Company’s temperature store requirements as detailed in Section 4.09, placing
refrigerated and frozen Products into their appropriate storage areas, but will
not be responsible for stocking shelves or rotating inventories.


All invoices for deliveries made during Store’s
business hours will be signed for by the Store’s store manager or other
representative prior to DISTRIBUTOR’s driver leaving the Store (provided that
the driver is not unreasonably delayed). Copies of invoices for deliveries made
after the Store’s regular business hours will be left at the Store.


The COMPANY agrees to use
its commercially reasonable efforts to cause Operators to provide keys and
security codes for night deliveries where necessary. In the event Operator
refuses to provide keys and security codes, Operator will promptly meet the
delivery driver at the scheduled appointment time or at such other time as
Operator has been notified in the event of a late delivery. If the Operator
fails to meet the DISTRIBUTOR delivery at the appropriate time on more than one
occasion, the Operator shall be responsible for payment of a penalty fee of [CONFIDENTIAL](1) to DISTRIBUTOR for subsequent occurrences. In the event of a
Product shortage or delivery problem that occurs during an unattended delivery,
the authorized representative of the Stores will contact the distribution
center no later than the first Notification Deadline following such unattended
delivery. The “Notification Deadline” is 4:00 p.m. local time each day for the
affected Stores.


2.05        Delivery Frequency/Routing - DISTRIBUTOR will provide each Operator with a minimum
delivery frequency based on annual case volume as shown below as long as the
Operator meets the minimum order requirements set forth in Section 5 hereof:






(1)      Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions have
been filed separately with the SEC.



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  Delivery Frequency

  
	
  Annual Case
  Volume

  	
   

  	
  Summer Routing

  	
   

  	
  Winter Routing

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less than 200
  cases

  	
   

  	
  4 deliveries
  during a 12 month period

  
	
  200-349 cases

  	
   

  	
  6 deliveries
  during a 12 month period

  
	
  350-499 cases

  	
   

  	
  8 deliveries
  during a 12 month period

  
	
  500-999 cases

  	
   

  	
  Every 4 weeks

  	
   

  	
  Every 4 weeks

  
	
  1,000-1,999
  cases

  	
   

  	
  Every 3 weeks

  	
   

  	
  Every 4 weeks

  
	
  2,000-3,499
  cases

  	
   

  	
  Every week

  	
   

  	
  Every 2 weeks

  
	
  Greater than
  3,499 cases

  	
   

  	
  Every week

  	
   

  	
  Every week

  



 


This schedule is intended to serve as a guideline only
and DISTRIBUTOR agrees to provide additional regular deliveries as requested by
Operator and approved by COMPANY in writing. COMPANY will provide DISTRIBUTOR
with the initial delivery frequency for each Store in Schedule 3. COMPANY and DISTRIBUTOR will
mutually agree on the exact date for routing changes from summer to winter and
winter to summer but each period will be approximately six (6) months with
summer routing from April through September and winter routing from October
through March.


In the event an emergency delivery is required based
upon the Operator’s needs and not due to a delivery error by DISTRIBUTOR nor
during the time periods specified in Section 2.06, DISTRIBUTOR will accommodate
the Operator’s request with the most efficient available delivery method. All
additional freight expense will be at the Operator’s expense and will be billed
upon DISTRIBUTOR’s receipt of the invoice from the shipping agent. If
DISTRIBUTOR is able to schedule such an emergency delivery in conjunction with
a nearby route, the additional freight expense will be [CONFIDENTIAL](2). Where possible, a store may order up to [CONFIDENTIAL](3) cases to be delivered to a nearby store, on that store’s
delivery day (and with that store’s consent) without an additional charge. Products
delivered to a nearby store will be billed on a separate invoice.


Should the need arise for an emergency or special
delivery due to supplier error, DISTRIBUTOR and COMPANY will work with the
supplier to remedy the shortage at the supplier’s expense. If supplier fails to
pay the additional freight expense, COMPANY will be required to do so provided
DISTRIBUTOR notifies COMPANY immediately of supplier non-performance. If an
emergency delivery is necessary due to DISTRIBUTOR error, DISTRIBUTOR will
arrange a special delivery with any additional freight to be paid by
DISTRIBUTOR.






(2)      Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(3)      Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



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DISTRIBUTOR will arrange
its routes to insure that its delivery trucks will be in all markets (SMSA’s of
at least 250,000 population) within each Territory at least twice a week where
at least twenty-five (25) Stores serviced by DISTRIBUTOR under this Agreement
are located.


2.06        Special Deliveries During Roll-Out and New Operator Openings - DISTRIBUTOR and COMPANY
recognize that during the initial roll-out phase of the DISTRIBUTOR
distribution program, many new processes will be in place for each of COMPANY,
the Operators and DISTRIBUTOR, including changes in the way the Operators
order, the distance from the DISTRIBUTOR distribution center to the Operators,
and lead times from order day to delivery day for the Operators. Therefore,
DISTRIBUTOR will process emergency orders for all Operators for the first
thirty (30) days following the commencement of distribution service at no
additional charge, subject to the minimum order requirements and applicable
handling fees, if any, as set forth in Section 5 of this Agreement.


2.07        Return of Products/Credits – Any Products ordered by
Operators which are returned to DISTRIBUTOR for any reason must be returned no
later than the next regularly scheduled delivery (except that, in the case of
Products to be returned as a result of concealed damage, within the remaining
shelf life of such Products) and all claims for Products to be returned must be
made either to the driver upon check-in of the order, by telephone by 4 p.m. on
the day of delivery following receipt of the Products if an unattended delivery
or, in the case of concealed damage, within twenty-four (24) hours of discovery
of concealed damage by the Operator. All returned items must be in unmarked
original packaging and must be in suitable condition for resale (unless damaged
or mis-marked Product was the reason for the return). Subject to the foregoing,
DISTRIBUTOR shall provide credit to the affected Operator for defective,
shorted or damaged Products within twenty-four (24) hours of the driver’s
return if brought to the driver’s attention or noticed by the driver during
delivery or, in any event, within forty-eight (48) hours of DISTRIBUTOR’s
receipt of the Operator’s claim of damaged, shorted or defective Products (or
receipt of product, if warranted) and will immediately provide documentation to
the Operator of such credit via fax or email as requested by the Operator. Notwithstanding
the foregoing, no returns will be permitted for cooler or freezer items, or
fresh produce due to misorder by the Operator. Products refused by Operator at
time of delivery for reasons other than damage or remaining shelf life below
agreed upon parameters will be subject to a [CONFIDENTIAL](4) restocking charge to be paid by
Operator. In the event that the shorted, defective or damaged Product is a Kill
Item, then DISTRIBUTOR will remedy the situation in accordance with Section
3.02 if so requested by the Operator.






(4)      Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



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2.08        Limited Time Offers (“LTO’s”)
- In order to allow DISTRIBUTOR to maintain service levels to the
Operators, COMPANY will provide DISTRIBUTOR with at least twenty-eight (28)
days prior written notice of any and all LTO’s to be run by COMPANY (subject to
availability of LTO Products from the supplier within the twenty-eight (28) day
period). Such written notices shall include estimated usage for the Products to
be promoted if such usage is expected to deviate materially from historical
levels or if a new Product. Subject to the above, DISTRIBUTOR agrees to stock
sufficient inventory for any new Proprietary Products to be used in national
LTO promotions and other key items, as reasonably requested by COMPANY. Unless
retained on the Operator’s menu at the instruction of the COMPANY or mutually
agreed to between COMPANY and DISTRIBUTOR, all LTO Products must be removed
from the DISTRIBUTOR distribution centers no later than sixty (60) days after
the completion of the LTO and COMPANY shall purchase all remaining inventory of
such LTO as provided in Section 3.02. The sale of LTO Products by DISTRIBUTOR
is final and LTO Products may not be returned to DISTRIBUTOR, unless the return
is necessitated due to a DISTRIBUTOR error or due to Product damage not caused
by the Operator.


3.             Suppliers of
Products; Inventory of Products.


3.01        Suppliers/Contracted
Products - The Proprietary Products to be distributed to the Operators
under the terms and conditions of this Agreement shall be purchased by
DISTRIBUTOR, on its own account, from the suppliers (including COMPANY)
selected by COMPANY, pursuant to terms and conditions as are agreed upon by and
between DISTRIBUTOR and such suppliers (including COMPANY). In the event
COMPANY enters into direct contracts with suppliers, the terms and conditions
of such contracts that obligate DISTRIBUTOR shall be provided to DISTRIBUTOR
for its business and legal review and, if the business and legal terms of the
proposed contract that apply to DISTRIBUTOR are reasonably acceptable to
DISTRIBUTOR, DISTRIBUTOR will approve the supplier contract. The guaranteed
supplier price provided under such supplier contract (net of billbacks by
DISTRIBUTOR, if any), plus applicable freight if the supplier price is not a
delivered price, [CONFIDENTIAL](5) Products governed by such supplier
contracts negotiated by COMPANY are referred to herein as “Contracted Products.”
The freight charges for Contracted Products will be an amount negotiated with
the supplier by COMPANY. DISTRIBUTOR agrees that Cost for any Contracted
Products will not include any unloading costs for palletized and slipsheet
loads.






(5)      Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



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3.02        Inventory -
During the term of this Agreement, DISTRIBUTOR shall maintain an inventory of
the Products in quantities necessary to provide the Operators with an adequate
supply of such Products based upon initial usage projections by COMPANY, future
historical usage of such Products by the Operators, and the fill rate
performance requirements detailed below. DISTRIBUTOR agrees to work with
COMPANY, to attempt to maximize the quantities of Products purchased to
efficiently reduce the cost of Products purchased, and to maximize Product
inventory turns. In addition, DISTRIBUTOR agrees to order Products in the
quantities indicated on the inbound quantity matrix attached hereto as Schedule 5, as amended by COMPANY to
reflect the growth in the number of Stores serviced by DISTRIBUTOR in the
Territory from time to time. To further insure DISTRIBUTOR’s ability to comply
with the performance requirements detailed later in this Section 3.02,
DISTRIBUTOR will also maintain “safety stock” of not less than [CONFIDENTIAL](6) days historical usage for all Proprietary Products and will
also have an additional [CONFIDENTIAL](7) days historical usage of white
chocolate mousse, chocolate and vanilla frozen yogurt on the road at all times.
DISTRIBUTOR agrees that all Products delivered to Operators will have at least
one-third of their original shelf-life remaining as of the date of delivery.


COMPANY categorizes Products into three classes:


Proprietary Products that
Operators must have (“Kill Items”), which Kill Items will not number more than [CONFIDENTIAL](8) at any time, excluding beverage Products and LTO items.
COMPANY will provide a list of Kill Items to DISTRIBUTOR, which list will be
updated by COMPANY from time-to-time. The initial list of Kill Items is
attached as Schedule 4.


Other Proprietary
Products that can be substituted in an emergency.


Non-proprietary Products,
including, any produce items that DISTRIBUTOR may agree to provide.


DISTRIBUTOR will achieve a 100% fill rate on Kill
Items with overnight emergency delivery, if requested, an overall aggregate “fill
rate” for all Products of [CONFIDENTIAL](9), and at least [CONFIDENTIAL](10) of all invoices issued by DISTRIBUTOR to the Operators will
be






(6)      Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(7)      Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(8)      Confidential
treatment has been requested for the redacted portion. The confidential, redacted
portions have been filed separately with the SEC.


(9)      Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(10)    Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



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completely accurate at the time of initial issuance,
with all of the above measured quarterly. The “fill rate” equals the percentage
of Products or Kill Items, as the case may be, obtained by dividing the total
number of Products or Kill Items shipped by DISTRIBUTOR and received by the
Operators at the time of delivery for the month, by the total number of Product
or Kill Items ordered by the Operators from the DISTRIBUTOR for that same
month. All fill rate measurements (and invoice accuracy requirements) will be
net of supplier-related issues such as shortages and delayed deliveries to
DISTRIBUTOR, provided DISTRIBUTOR notifies COMPANY immediately in the event of
supplier non-performance. If emergency delivery is required due to supplier
(including COMPANY) error, costs of emergency delivery shall be at supplier
(including COMPANY) expense, provided that, if the supplier fails to absorb
such expense, such delivery costs shall be paid by the Operator provided
DISTRIBUTOR has notified COMPANY immediately in the event of such
non-performance and Operator has approved the additional expense in advance. If
the emergency delivery is due to DISTRIBUTOR error, then DISTRIBUTOR will
remedy the situation in as efficient manner as possible, which may include
emergency deliveries and special freight shipments, at DISTRIBUTOR’S sole
expense. If the emergency delivery is due to Operator error, the Operator shall
pay delivery costs for such emergency delivery. From the moment of receipt of
the Products for storage by DISTRIBUTOR until the Products have been accepted
by Operator at the Store, DISTRIBUTOR assumes all risk of loss or damage with
respect thereto, shall be directly liable to COMPANY for any such loss or
damage to the Products and the related costs and expenses for replacing the
Products and agrees to obtain and maintain adequate insurance coverage to
insure against such loss or damage.


In the event of substitution of a Proprietary Product,
the substituted Product must have been previously approved by COMPANY in
writing and, if the need for substitution was caused due to DISTRIBUTOR error,
the price of the substituted Product will be determined based on the lower of the
Cost (as hereinafter defined) of the substituted Product or the Cost of the
out-of-stock Product that it replaces. In addition, DISTRIBUTOR will reimburse
COMPANY to the extent that COMPANY would have realized a difference between its
selling price to DISTRIBUTOR and the amount that COMPANY would have paid for
the Proprietary Product from its supplier, unless the substitution is due to
COMPANY’s error. Upon request, COMPANY shall provide to DISTRIBUTOR copies of
invoices and other documentation reasonably necessary to verify the amount of
the difference claimed by COMPANY. If substitution is due to supplier
(including COMPANY) error, then COMPANY shall cause supplier to, or if COMPANY
is the supplier, COMPANY shall, reimburse DISTRIBUTOR for any reasonable losses
sustained due to such error.



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To the extent that DISTRIBUTOR is unable to sell to
the Operators quantities of the Proprietary Products in DISTRIBUTOR’s inventory
for any reason whatsoever, including, but not limited to, Product
discontinuation, slow-moving inventory, unused LTO Products, promotional or
seasonal Products or exceeded shelf life due to sudden decline in Product
movement and not due to DISTRIBUTOR error, COMPANY will purchase, or cause a
third party to purchase, all remaining inventory of such Proprietary Products
at DISTRIBUTOR’s cost, F.O.B. the DISTRIBUTOR distribution centers plus
DISTRIBUTOR’s handling and carrying charges, if properly approved by COMPANY in
advance as outlined below. In such event, COMPANY will purchase or cause to be
purchased all perishable Proprietary Products within [CONFIDENTIAL](11)
days after notice from DISTRIBUTOR or by the expiration date of the Proprietary
Products, whichever is earlier, and all nonperishable Proprietary Products
within [CONFIDENTIAL](12) days after notice from
DISTRIBUTOR. In addition, if the inventory re-purchase is necessitated for any
reason other than DISTRIBUTOR error, COMPANY shall reimburse to DISTRIBUTOR all
reasonable out-of-pocket costs and expenses (not to exceed an amount equal to[CONFIDENTIAL](13) of the Product’s Cost unless DISTRIBUTOR receives COMPANY’S
prior written consent) incurred by DISTRIBUTOR in selling, returning or
otherwise disposing of such Products. DISTRIBUTOR shall provide COMPANY with
documentation or other proof that any such costs and expenses were incurred by
DISTRIBUTOR. In order to allow COMPANY to monitor the supply and usage of the
Proprietary Products, DISTRIBUTOR shall provide to COMPANY a monthly obsolete
and slow-moving inventory report.


3.03        Aged Inventory
Notification-DISTRIBUTOR will immediately notify COMPANY in writing in
the event that any quantities of its Proprietary Products are within [CONFIDENTIAL](14) days of expiration of product life. If DISTRIBUTOR fails to
do so, COMPANY shall not be required to comply with the requirements set forth
in Section 3.02.


3.04        Present DISTRIBUTOR’s
Inventory - DISTRIBUTOR agrees to purchase the existing merchantable
and saleable inventory of Proprietary Products from COMPANY’S present
distributor located in Alsip, Illinois in quantities not to exceed a [CONFIDENTIAL](15) days’ supply of such Products, in the aggregate, provided
that DISTRIBUTOR and COMPANY have been given an opportunity by the present
distributor to inspect any such Product prior to purchase pursuant to this
Section 3.04. DISTRIBUTOR will pay, via check, the present distributor for






(11)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(12)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(13)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(14)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(15)    Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



 12
 









Products purchased from it, within ten (10) days of
the later of DISTRIBUTOR’S receipt of the Products or the receipt of the
invoice approved by COMPANY for the Products. DISTRIBUTOR shall be responsible
for all freight and unloading costs associated with transporting such inventory
from the existing DISTRIBUTOR’s locations listed above. DISTRIBUTOR will not be
responsible for any handling or other fees charged by the current distributor
in connection with DISTRIBUTOR’s loading and transferring of such inventory.
COMPANY and the current distributor will be required to provide all reasonable
assistance and cooperation to DISTRIBUTOR in connection with the purchase,
loading and transportation of such inventory from the current distributor to
the DISTRIBUTOR distribution center, including the scheduling of mutually
agreeable inventory inspection and pick-up times.


In the event that the Cost of the Product, as
purchased from the existing distributor, exceeds or is less than the Cost that
DISTRIBUTOR would otherwise utilize in determining the Sell Price for such
Products obtained through suppliers, including COMPANY, DISTRIBUTOR shall
utilize the Cost designated by COMPANY in determining the Sell Price and shall
invoice, pay to COMPANY or charge the Operator, as directed by the COMPANY, in
the amount of the difference. In the event COMPANY directs DISTRIBUTOR to
invoice the COMPANY, COMPANY shall pay such invoiced amount within [CONFIDENTIAL](16) days of the date of the invoice. In the case of a rebate to
COMPANY, DISTRIBUTOR shall pay the rebated amount within [CONFIDENTIAL](17) days of its determination of the amount to be rebated.


4.             Sell Price/Payment
Terms/Financial Reporting


4.01        Sell Price - Beginning
on the Effective Date and throughout the entire term of this Agreement, the
maximum purchase price at which DISTRIBUTOR shall sell the Products, (the “Sell
Price”), to the Operators shall be determined by adding the “Cost” (as hereinafter
defined) of the Product plus [CONFIDENTIAL](18) per case for all deliveries
(collectively, “Markup”), subject to the other provisions of this Agreement. For
purposes of this Agreement, the “Cost” of a Product other than a Contracted
Product shall be the sum of (a) the cost of the Product as shown on the
invoices to DISTRIBUTOR from the respective supplier, including COMPANY, plus
(b) if the invoiced cost of the Product is not a delivered price, the
applicable freight charges related to shipping the Product from the supplier to
DISTRIBUTOR’S distribution center and, if applicable, the inter-branch freight
cost detailed in Section 3.02, plus (c) the Sourcing Fees (as later defined in
Section 4.06), if any, attributable to the Product, less (d) promotional allowances
reflected on supplier invoices to DISTRIBUTOR. Applicable freight, in those
cases where the






(16)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(17)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(18)    Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



 13
 









invoice cost to DISTRIBUTOR for non-proprietary
Products is not a delivered cost, means that DISTRIBUTOR has added a reasonable
freight charge, agreed to in advance and in writing by COMPANY for delivering
such non-proprietary Products from suppliers to DISTRIBUTOR. Applicable freight
for any non-proprietary Product will not exceed the rate charged by nationally
recognized carriers operating in the same market for the same type of freight
service. Cost for any non-proprietary Product will not be reduced by discounts
for cash or prompt payment available to DISTRIBUTOR, breakage allowances or by
backhaul revenue. Fuel or other transportation surcharges indicated on the
manufacturer’s or supplier’s invoice or on freight invoices will increase Cost.
The Cost of a Contracted Product shall be determined in accordance with Section
3.01. In no event will the Cost of Contracted Products include amounts to be
rebated to DISTRIBUTOR and therefore, DISTRIBUTOR will not negotiate
off-invoice manufacturer rebates, labels/promotional allowances or any other “soft
money” received from supplier or freight carriers of Contracted Products. In
order to allow verification of the foregoing commitment, DISTRIBUTOR agrees to
provide documentation substantiating the Cost of items DISTRIBUTOR purchases
from suppliers and freight carriers. DISTRIBUTOR agrees to limit its collection
of such “soft money” to the manufacturers of non-proprietary Products. The Cost
of Contracted Products will not be reduced by discounts for cash or prompt
payment available to DISTRIBUTOR, breakage allowances or by backhaul revenue.
Fuel or other transportation surcharges indicated on the manufacturer’s or
supplier’s invoice or on freight invoices will increase Cost.


The invoice format to be
used by DISTRIBUTOR will be approved by COMPANY and will contain separate lines
showing subtotals for various Product categories, applicable taxes, the date of
the ACH debit and other summary line items as detailed elsewhere in this
Agreement.


Partial case shipments
(also known as “splits”) shall be permitted for the malt, maraschino cherries,
chocolate sprinkles, assorted sprinkles in which individual units of such
Products are separately packaged within each case. Notwithstanding anything
else contained in this agreement to the contrary, the Markup for the following
items will be limited to [CONFIDENTIAL](19): maraschino cherries, medium
spoons, straws, chocolate sprinkles and assorted sprinkles. The Markup for
taster spoons and water will be limited to [CONFIDENTIAL](20)


Notwithstanding anything
else contained herein to the contrary and for the entire term of this
Agreement, COMPANY and DISTRIBUTOR agree that the Markup will be reduced by
seven






(19)    Confidential
treatment has been requested for the redacted portion. The confidential,
redacted portions have been filed separately with the SEC.


(20)    Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



 14
 









($.07) cents per case for
all Products except for those listed in the preceding paragraph, in the event
that DISTRIBUTOR ceases providing distribution services to the Stores located
in Huron and Pierre, South Dakota or in the event that DISTRIBUTOR delivers
Products for these two Stores to a third party distributor located in the
Territory. In the event that DISTRIBUTOR does deliver these Products to a third
party distributor, then the Markup will be the same as for all other Stores
with the exception that the delivery surcharges called for in Section 5 of this
Agreement will not apply.


4.02                “Cost” for Contracted Products/True-Up
Methodology- In the case of Contracted products, COMPANY agrees
to notify DISTRIBUTOR as soon as practical after a change in Cost has been
agreed to with a supplier. COMPANY shall have the right to adjust the Markup
for individual Products (not including the fuel surcharge or the lower Markup
on the items listed in Section 4.01 above) from time to time to an amount that
is more or less than the agreed upon Markup per case. If COMPANY exercises its
right to lower DISTRIBUTOR’s Markup on any Products, it will simultaneously and
correspondingly increase the Markup on other Products so as to provide
DISTRIBUTOR continuously with an average overall Markup of [CONFIDENTIAL](21) per case, as adjusted from time to time pursuant to this
Agreement.


Following each calendar
quarter, DISTRIBUTOR shall provide a cumulative report that reflects: (i) the
total number of cases of Products delivered to the Stores under this Agreement
during the preceding quarter (“x”); (ii) the total of the Sell Prices charged
for all Products delivered to the Stores under this Agreement during the
preceding quarter (“y”), (iii) the total of the Cost of each Product delivered
to the Stores during such quarter (“z”), and (iv) the “Average Putative Markup”
for Products delivered to the Stores, which shall be calculated as follows:
[(y-z)/x]. If the Average Putative Markup is less than the Markup required
pursuant to Section 4.01 (and as modified pursuant to the other provisions of
this Agreement), with such deficiency being referred to herein as the “Markup
Deficiency”, COMPANY shall remit to DISTRIBUTOR, an amount equal to the number
of cases delivered to the Stores under this Agreement during the preceding
quarter (“x”), multiplied by the Markup Deficiency. If the Average Putative
Markup exceeds the Markup required pursuant to Section 4.01 (and as modified
pursuant to the other provisions of this Agreement), with such excess being
referred to as the “Markup Excess”, DISTRIBUTOR shall remit to COMPANY an
amount equal to the number of cases delivered to the Stores under this
Agreement during that quarter (“x”), multiplied by the Markup Excess. Payments
owed by either party under this Section 4.02 shall be made by such party to the
other party, via check, within ten (10) days of the determination of the
amounts owed and, in any case, within thirty (30) days following the end of the
applicable calendar quarter for which such






(21)    Confidential treatment has
been requested for the redacted portion. The confidential, redacted portions
have been filed separately with the SEC.



 15















payments are owed or by making adjustments to the Sell Price as
mutually agreed upon between COMPANY and DISTRIBUTOR.


4.03        Fuel Cost Adjustments
- If the operating costs of DISTRIBUTOR are increased or decreased as a result
of fuel cost increases or decreases, DISTRIBUTOR may adjust the Markup (as and
if otherwise adjusted pursuant to the terms of this Agreement) to compensate
for such fluctuations in fuel costs, on a monthly basis. The amount of the
adjustment computed in accordance with this Section 4.02 shall also be added to
or subtracted from, as applicable, the specified price for Contracted Operator
Sell Price Products described in Section 4.11. 
The method for determining the fuel surcharge or adjustment will be made
monthly beginning March 1, 2007 and will be based on the Midwest Weekly Retail
On-Highway diesel fuel price which is compiled by the Energy Information
Administration. The Web site to access this information electronically is as
follows:


http://www.eia.doe.gov/pub/oil_gas/petroleum/data_publications/weekly_on_highway_diesel_prices/current/  html/diesel.html


If such publication is no longer published or available, then the
parties will mutually agree upon an acceptable alternative source.


As fuel prices increase or decrease, the fuel cost adjustments will
move according to changes in the prior four (4) week average for the Midwest
fuel price bracket, and will take effect on the first day of the calendar month
following the applicable publication date. 
For example, the fuel cost adjustment beginning the first day in March,
if any, will be determined based on the four (4) week average ending
immediately prior to or on February 28th.


	
  Price Per Gallon Including
  Taxes

  	
   

  	
  Per Case Surcharge/Credit

  
	
   

  	
   

  	
   

  
	
  [CONFIDENTIAL](22)

  	
   

  	
   

  



 


If the price per gallon, including taxes, exceeds [CONFIDENTIAL](23), the surcharge will equal






(22)    Confidential
treatment has been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.



 16
 









[CONFIDENTIAL](24) per case plus an additional [CONFIDENTIAL](25) per case for each [CONFIDENTIAL](26) increment (or portion
thereof) that the price per gallon exceeds [CONFIDENTIAL](27).
If the price per gallon, including taxes, falls below [CONFIDENTIAL](28), a credit will be issued
in the amount of [CONFIDENTIAL](29) per
case plus an additional [CONFIDENTIAL](30)
per case for each ten cent increment (or portion thereof) that the price
is less than [CONFIDENTIAL](31). Any such surcharge or credit
will be shown as a separate line item on the Operator’s invoice.


4.04        Markup Adjustments due
to Variances from Projections.


The [CONFIDENTIAL](32) Markup during the first [CONFIDENTIAL](33) months after the Effective Date
is premised upon an average annual delivery size of [CONFIDENTIAL](34)
cases to the Stores serviced by DISTRIBUTOR.


After the first [CONFIDENTIAL](35) months of service and after each [CONFIDENTIAL](36)
month period thereafter, the Markup for the Stores for the next [CONFIDENTIAL](37) months will be based on the actual average delivery size for
the previous [CONFIDENTIAL](38) months as calculated below and
according to the following schedule:


[CONFIDENTIAL](39)


The average
delivery size will be calculated by summing up all of the cases delivered to
the Stores serviced by DISTRIBUTOR in the Territory for the previous [CONFIDENTIAL](40) months (with each partial case or “split” counting as a full
case) and dividing the total number of






(23)    Confidential treatment has
been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


(24)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(25)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(26)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(27)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(28)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(29)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(30)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(31)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(32)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(33)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(34)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(35)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(36)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(37)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(38)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(39)    Confidential treatment has been requested
for the redacted portion.  The
confidential, redacted portions have been filed separately with the SEC.


(40)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 17
 









cases delivered by
the total number of deliveries made by DISTRIBUTOR as modified below.  The number of deliveries made by DISTRIBUTOR
shall not include deliveries to correct errors made by DISTRIBUTOR or
suppliers, nor shall it include deliveries for which DISTRIBUTOR has received
the [CONFIDENTIAL](41) special delivery fee in
accordance with Section 2.05.


In the event the
average delivery size for the previous [CONFIDENTIAL](42) months falls outside of the
ranges described above, COMPANY and DISTRIBUTOR will negotiate a new Markup
adjustment in good faith.  In the event
COMPANY and DISTRIBUTOR fail to agree on such a Markup adjustment within [CONFIDENTIAL](43) days after the commencement of negotiations under this
Section 4.04, then both COMPANY and DISTRIBUTOR will have the right to
terminate this Agreement with one hundred-eighty (180) days written notice to
the other party in accordance with Section 6.02 (b)(ii).


4.05        Payment Terms/Markup
Adjustments due to Payment Methodology


(a)   Standard Payment Terms.  Except as noted below, DISTRIBUTOR and
COMPANY have agreed that payments to DISTRIBUTOR for Products delivered to the
Operators (including Contract Feeders as defined below) shall be received by
ACH debit entry initiated by DISTRIBUTOR, so that the amount is credited to
DISTRIBUTOR’s account on Friday of each week for deliveries made during the
preceding [CONFIDENTIAL](44) days. Thus, stores which receive
deliveries on Saturday or Sunday, would have their account debited [CONFIDENTIAL](45) and [CONFIDENTIAL](46) days, respectively, after receipt
of their order.  DISTRIBUTOR may also
accept payment by check if so requested by Operator and approved by
DISTRIBUTOR.  All new Operators will
initially receive credit terms as outlined above, provided that they satisfy
DISTRIBUTOR’S credit criteria for such terms, as such criteria is uniformly
applied among all similarly situated Operators, in light of all relevant facts
and circumstances.  Payment terms will be
extended only to those Operators that are creditworthy as shall have been
solely determined by DISTRIBUTOR. DISTRIBUTOR may, in its sole discretion,
provide alternate payment terms to those Operators not meeting DISTRIBUTOR’s
standards for creditworthiness. 
DISTRIBUTOR will provide email or fax notice to each Operator at






(41)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(42)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(43)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(44)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(45)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(46)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 18
 









least [CONFIDENTIAL](47) days prior to the ACH debit entry
actually taking place, advising Operator of the amount of the ACH debit, along
with the invoice number and any credits posted during the prior [CONFIDENTIAL](48) days.


Notwithstanding the foregoing, DISTRIBUTOR agrees to provide extended
credit terms to Operators performing as Contract Feeders (as defined below) in
non-traditional locations provided that they satisfy DISTRIBUTOR’s credit
criteria for such terms, as such criteria is uniformly applied among all similarly
situated Operators in light of all relevant facts and circumstances. To qualify
for such credit terms, each location operated by a Contract Feeder in the
Territory must be approved by COMPANY in writing and the Contract Feeder must
comply with these extended credit terms. 
“Contract Feeders” are Operators who operate non-traditional food
service locations in facilities such as airports, sports facilities, travel
plazas, universities, tech centers, etc.


(b)           No
Set-Off/Late Fees/Collection Costs. 
No deductions or set offs from payments due to DISTRIBUTOR may be made
by Operators for any reason without the prior written authorization of
DISTRIBUTOR.  Failure of the Operator to
make any payment required when due shall result in DISTRIBUTOR having the right
to impose more stringent credit or payment terms, such as, without limitation,
cash in advance, cash on delivery, delivery of acceptable letters of credit or
third party guaranties, or additional collateral, or, after three (3) business
days’ prior notice to COMPANY and the affected Operator, to suspend all
deliveries, and declare the entire unpaid balance of the Operator’s account
immediately due and payable. The COMPANY shall pay, and shall use its
commercially reasonable efforts to cause each Operator to pay, all reasonable
costs of collection, including reasonable attorneys fees incurred or paid by
DISTRIBUTOR, but only to the extent related to their respective accounts.
DISTRIBUTOR will have the right to charge interest at the maximum rate permitted
by law but not exceeding [CONFIDENTIAL](49) percent per annum on all unpaid
amounts due or owing by Operators and/or COMPANY to DISTRIBUTOR.


(c)           COMPANY’S
Liability for Payments. COMPANY agrees that it shall be liable for all
liabilities of COMPANY expressly set forth in this Agreement.  COMPANY will not be liable for the debts or
obligations of Operators unless otherwise agreed to in writing by COMPANY.






(47)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(48)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(49)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 19
 









(d)           Payments
to COMPANY.   COMPANY will invoice
DISTRIBUTOR directly for [CONFIDENTIAL](50) for its frozen yogurt Products as
shipped from the manufacturer and will designate the [CONFIDENTIAL](51)
as separate line items for each Product. [CONFIDENTIAL](52) COMPANY reserves the right to
alter [CONFIDENTIAL](53) on its frozen yogurt Products in
its discretion but no more frequently than quarterly.    DISTRIBUTOR agrees to pay COMPANY for these
invoices within [CONFIDENTIAL](54) days of receipt.


COMPANY will also invoice DISTRIBUTOR for [CONFIDENTIAL](55)
on its frozen cake and pie Products for each Product as shown on [CONFIDENTIAL](56).  Company reserves the
right to alter [CONFIDENTIAL](57) on its frozen cake and pie
Products in its discretion but no more frequently than quarterly.  Distributor shall pay all invoices for [CONFIDENTIAL](58) on its frozen cake and pie Products when invoiced by the
COMPANY within [CONFIDENTIAL](59) days of invoice date, which date
will be no earlier than the date of receipt of the applicable Products by the
DISTRIBUTOR.


In the event COMPANY decides to establish a new procedure for new and
or established Stores to bill and collect [CONFIDENTIAL](60), such that the [CONFIDENTIAL](61) is billed and collected from the Stores by DISTRIBUTOR,
DISTRIBUTOR agrees to remit such fees each Friday via ACH credit for all sales
made the previous week.


4.06        Sourcing Fees.  COMPANY may, from time to time, collect
compensation from the Operators for services that it provides to such
Operators, either by increasing the Cost of a product supplied by COMPANY, to
DISTRIBUTOR for distribution under this Agreement, or through the assessment of
an additional fee (a “Sourcing Fee”) that COMPANY instructs DISTRIBUTOR to add
in the calculation of the Sell Price of Products not purchased from
COMPANY.  Any changes in the Sourcing
Fees shall occur no more frequently than monthly.  COMPANY specifically represents and warrants
that such Sourcing Fees (or increases in the invoiced Cost) have been and will
continue to






(50)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(51)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(52)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(53)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(54)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(55)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(56)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(57)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(58)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(59)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(60)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(61)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 20
 









be disclosed to all Operators, and that the charging
and collection of such Sourcing Fees (or increased Cost) I permitted under its or
its affiliates’ agreements with the Operators and does not violate any
applicable laws.  COMPANY shall
indemnify, defend and hold harmless DISTRIBUTOR, its affiliates and each of
their respective officers, agents, directors, shareholders or employees for any
claims, loss, liability or expense (including reasonable attorney’s fees and
disbursements) arising from a breach of this representation and warranty.


DISTRIBUTOR shall pay all Sourcing Fees to COMPANY via initiation of an
ACH credit entry each Friday with respect to those Products delivered to the
Operators during the preceding week and on which a Sourcing Fee was assessed.


4.07        Financial Information.  DISTRIBUTOR may request balance sheets,
income statements and such further financial information from each Operator
from time to time as will enable DISTRIBUTOR to accurately assess the Operators’
financial condition.   The COMPANY may
require DISTRIBUTOR to supply annual audited balance sheets and income
statements and such further financial information from time to time as will
enable COMPANY to accurately assess DISTRIBUTOR’S financial condition.


4.08        Price
Verifications-Audit- COMPANY will be allowed to perform electronic
Purchase Price verifications for purchases made under this Agreement on a weekly
basis and DISTRIBUTOR will supply the necessary files and information to
COMPANY for these audit purposes on a timely basis and in a form acceptable to
COMPANY and DISTRIBUTOR.  As part of this
electronic auditing procedure, COMPANY may also audit the payments made to it
for accuracy as well.  If any such audit
reveals net pricing, delivery surcharge or COMPANY payment errors (overcharges
set off by undercharges) in excess of [CONFIDENTIAL](62) in the aggregate during the
audited period (not to exceed a twelve (12) month period) COMPANY shall have
the right to conduct additional audits, at its option and at DISTRIBUTOR’S
reasonable expense, until the aggregate net pricing errors disclosed by an such
additional audits are less than [CONFIDENTIAL](63) for the applicable audit
period.  For any audit conducted pursuant
to this Section 4.08 that discloses that Operators were either overcharged or
undercharged for Products, or that COMPANY was overpaid or overcharged during
the audited period, DISTRIBUTOR and COMPANY agree to correct the overcharge,
undercharge, overpayment or underpayment, as the case may be.  The form and method for making these
adjustments will be mutually agreed upon by DISTRIBUTOR and COMPANY;






(62)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(63)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 21
 









provided, however, in any event the remittance of any such adjustments
shall be made by either party within [CONFIDENTIAL](64) days from the final determination
of the undercharge or overcharge, as applicable.


4.09        DISTRIBUTOR Operator
Support -DISTRIBUTOR agrees to provide the following Operator support
to COMPANY.


(a)           DISTRIBUTOR will
support the System by participating in the supplier show at its own
expense.  In addition, DISTRIBUTOR will
pay COMPANY an annual support payment equal to [CONFIDENTIAL](65)
payable within [CONFIDENTIAL](66) days of written request by
COMPANY.  COMPANY may submit such
requests [CONFIDENTIAL](67) during each calendar year and a
total of [CONFIDENTIAL](68) such requests during the term of
this Agreement.


(b)           DISTRIBUTOR
will support COMPANY in terms of activating product recalls in accordance with
DISTRIBUTOR’S standard product recall policies.


(c)           DISTRIBUTOR will adhere
to the following HACCP requirements for monitoring of temperature controls for
perishable products both in the DISTRIBUTOR distribution center and in
DISTRIBUTOR’S transportation equipment.


	
  

  	
   

  	
   

  	
   

  	
  TEMPERATURE

  	
   

  	
  UPPER TEMP.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  REQUIREMENTS IN

  	
   

  	
  RANGE WHILE

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  DISTRIBUTION

  	
   

  	
  TRANSPORTED TO

  	
   

  
	
  ITEM

  	
   

  	
  FORM

  	
   

  	
  CENTER

  	
   

  	
  STORES

  	
   

  
	
  Soft Serve Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o
  or lower

  	
   

  	
  0o

  	
   

  
	
  Hand-Dipped Frozen Yogurt

  	
   

  	
  Frozen

  	
   

  	
  -10o
  or lower

  	
   

  	
  0o

  	
   

  
	
  Yogurt Cakes and Pies

  	
   

  	
  Frozen

  	
   

  	
  -10o
  or lower

  	
   

  	
  0o

  	
   

  
	
  Various Toppings

  	
   

  	
  Refrigerated

  	
   

  	
  34o
  to 36o

  	
   

  	
  38o

  	
   

  
	
  Nuts and Liquid Toppings

  	
   

  	
  Frozen

  	
   

  	
  0
  or lower

  	
   

  	
  0o

  	
   

  
	
  Various Toppings

  	
   

  	
  Dry

  	
   

  	
  Above 38

  	
   

  	
  Above 38

  	
   

  



 






(64)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(65)    Confidential treatment has
been requested for the redacted portion.  The confidential, redacted portions have been
filed separately with the SEC.


(66)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(67)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(68)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 22
 









(d)   DISTRIBUTOR
will provide COMPANY with periodic EDI file transfers to include the following:


	
  

  	
  Weekly invoice register by store outlining the
  SKU’s and quantity purchased

  
	
   

  	
   

  
	
   

  	
  Weekly inventory levels, age of inventory, sales and
  pending orders and delivery dates by item

  
	
   

  	
   

  
	
   

  	
  Weekly report of Current Stores

  
	
   

  	
   

  
	
   

  	
  Weekly report of average drop sizes for each store

  
	
   

  	
   

  
	
   

  	
  Monthly delivery performance report with on-time
  performance, fill rates and clean invoice percentages

  
	
   

  	
   

  
	
   

  	
  Daily out-of-stock report and stores so affected

  
	
   

  	
   

  
	
   

  	
  Monthly costing detail on all Products used by the
  SYSTEM

  
	
   

  	
   

  
	
   

  	
  Such additional reports as may be reasonable
  requested by the COMPANY

  



 


4.10      Taxes – Franchisees
and COMPANY shall each be responsible for their applicable sales and use
taxes.  DISTRIBUTOR shall collect
applicable taxes from each responsible party and be responsible for remitting
all taxes to the proper state and local taxing authorities.  COMPANY shall only be responsible for paying
those taxes on the Stores under its control and operation.  DISTRIBUTOR agrees to indemnify and defend
COMPANY pursuant to Section 8.01 of this Agreement should Company receive a
claim for the DISTRIBUTOR’s failure to pay taxes.  Neither party will pay a claim which is
allegedly the responsibility of the other without first notifying the other and
giving the other the opportunity to contest the claim.


4.11      Special Pricing Arrangements - Products that are governed by national billing agency or
other programs for which the price at which the DISTRIBUTOR must sell the
Product to the Operator is prescribed by agreements between COMPANY, or any
other franchisor or group purchasing organization, on the one hand, and the
supplier or manufacturer of such Products, on the other, are referred to in
this Agreement as “Contracted Operator Sell Price Products”.  Notwithstanding Section 4.01, the Sell Price
for Contracted Operator Sell Price Products shall be the amount prescribed (or
calculated in accordance with) the above-described programs or agreements.  Contracted Operator Sell Price Products
include, but are not limited to, soft drink syrup products including, without
limitation, the following Coca Cola Products: 
Coke Bag in Box (“BiB”), Diet Coke BiB, Sprite BiB and Barq’s Root Beer
BIB.


4.12        Additional Markup for
Stores Not Ordering Electronically- Commencing the first day of the
month at least sixty (60) days after the Effective Date, Operators who desire
to continue to place orders by fax or telephone will be charged an additional
fee of [CONFIDENTIAL](69) for each case delivered on that
fax or






(69)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 23
 









phone order in addition to any other charges applicable under this
Agreement.  This additional fee will be
included in as a separate line item on the invoice.  This additional Markup will not be assessed
to Operators in the event that DISTRIBUTOR’S website is not operational or in
the infrequent circumstance where an Operator, who has been in the habit of
ordering electronically, may be unable to place an order in this fashion due to
technical difficulties.


5.     Minimum Deliveries - The
Operators will be required to order Products in minimum quantities of [CONFIDENTIAL](70) cases of Products per delivery unless due to DISTRIBUTOR or
supplier error.  In addition, Operator
will be required to pay DISTRIBUTOR a [CONFIDENTIAL](71) handling fee per order for orders
of less than [CONFIDENTIAL](72) cases but greater than [CONFIDENTIAL](73) cases and a [CONFIDENTIAL](74) handling fee per order for orders
of less than [CONFIDENTIAL](75) cases but greater than or equal
to [CONFIDENTIAL](76) cases unless due to DISTRIBUTOR
or supplier, including failure to fulfill the order in its entirety.


6.     Term and Termination


6.01        Term - The
initial term of this Agreement shall commence on the Effective Date and shall
continue until exactly three (3) years after the commencement of full service
to all Stores to be serviced in the Territory (“Initial Term”), unless sooner
terminated as provided below or in Section 6.02.  This Agreement shall automatically renew for
one (1) additional year upon the completion of the Initial Term unless one
party notifies the other in writing at least one hundred eighty (180) days
before the expiration of the Initial Term of its desire to terminate the
relationship.


Both COMPANY and DISTRIBUTOR shall have the right,
commencing sixty (60) days prior to the first and second anniversary dates of
the Effective Date of this Agreement, and expiring thirty (30) days prior to
these same first and second anniversary dates of the Effective Date (“Opt Out
Period”), to terminate this Agreement for any reason, provided that the party
terminating the Agreement notifies the other party in writing within the Opt
Out Period.  Such termination shall then
be effective ninety (90) days after the next anniversary date of the Effective
Date of this Agreement.






(70)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(71)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(72)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(73)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(74)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(75)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(76)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 24
 









6.02        Termination


(a)           Either
party shall have the right, upon prior written notice, to immediately terminate
this Agreement if the other party fails to make payment of any amounts due and
payable under this Agreement, and such failure shall have continued for a
period of ten (10) days from and after the date of written notice to the
defaulting party or in the event the other party files a voluntary petition or
consents to the filing of a petition against it in bankruptcy or any similar
insolvency or debtor relief action, or if the other party makes a general
assignment for the benefit of creditors, or in the event a receiver is
appointed or any proceeding is demanded or initiated by, for or against the
other party under any provision of the Federal Bankruptcy Act or any amendment
thereof.


(b)           Either
party shall have the right to terminate this Agreement upon 180 days written
notice under any of the following conditions:


(i)            Upon
the occurrence of any material breach or material default by the other party,
which remains uncured after expiration of the applicable Cure Period (as herein
defined), of any of the terms, obligations, covenants, representations and
warranties under this Agreement (except for a default specified in Section 6.02
(a) above) which is not waived in writing by the non-defaulting party.  In such case, the non-defaulting party shall
notify the other of such alleged beach or default and the other party shall
have a period of thirty (30) days to cure the same (the “Cure Period”). If the
defaulting party cures its breach or default within any applicable Cure Period
to the reasonable satisfaction of the non-defaulting party, the notice shall be
void and this Agreement shall continue; otherwise, it shall terminate in accordance
with the notice.


or


(ii)           In
the event the parties fail to agree on a Markup adjustment pursuant to Section
4.03.


6.03        Effect of
Expiration/Termination - Upon expiration or sooner termination of this
Agreement, for any reason, COMPANY shall promptly purchase or arrange for the
purchase from DISTRIBUTOR at DISTRIBUTOR’s cost (including freight costs),
F.O.B. DISTRIBUTOR’s distribution center, all of DISTRIBUTOR’s inventory of the
Proprietary Products and any labeling and packaging materials used in connection
with the Proprietary Products.  COMPANY
will purchase or cause to be purchased perishable Proprietary Products within 



 25
 









[CONFIDENTIAL](77) days after the effective date of
termination of this Agreement or by the expiration date of such Proprietary Product,
whichever is earlier, and all nonperishable Proprietary Products within [CONFIDENTIAL](78) days after the effective date of termination of this
Agreement. In addition, if this agreement is terminated due to COMPANY’s breach
or default, COMPANY shall reimburse to DISTRIBUTOR all other reasonable
out-of-pocket costs and expenses (not to exceed an amount equal to [CONFIDENTIAL](79) of the Markup on each Product unless DISTRIBUTOR receives
COMPANY’s prior written consent) incurred by DISTRIBUTOR in selling, returning
or otherwise disposing of such Proprietary Products. DISTRIBUTOR shall provide
COMPANY with documentation or other proof that any such costs and expenses were
incurred by DISTRIBUTOR. Termination of this Agreement shall not relieve either
party of any obligation or liability which accrues prior to the effective date
of termination (including, but not limited to, obligations related to the
payment of COMPANY’s accounts receivable or accounts payable and the purchase
of excess inventories). Notwithstanding the foregoing provisions of this
Section 6.03 to the contrary, if this Agreement is terminated due to
DISTRIBUTOR’s breach or default or expires in accordance with the provisions of
Section 6.01, COMPANY shall have the obligation to purchase, or shall direct
the replacing distributor or other suitable purchaser to purchase, from
DISTRIBUTOR only such inventory of the Proprietary Products which is
merchantable and saleable but COMPANY shall have no obligation to reimburse
DISTRIBUTOR for its out-of-pocket costs and expenses related to selling,
returning or otherwise disposing of such Proprietary Products.


7.             Trademarks
and Trade Names - COMPANY hereby represents and warrants that it
is the owner of, or has the right to use under license or sublicense, all
trademarks, logos, trade names, and other markings used on the Proprietary
Product’s packaging and labels (the “Trademarks”). COMPANY hereby grants to
DISTRIBUTOR the right to use the Trademarks solely in connection with the
approved sale and distribution of the Proprietary Products in accordance with
the provisions of this Agreement and only for as long as this Agreement remains
in effect. COMPANY also grants to DISTRIBUTOR the right and license to use the
Trademarks in advertising and promotional materials when the Trademarks are
used therein to identify the Proprietary Products, subject to COMPANY’s prior
written approval of form and content. Provided DISTRIBUTOR is using the
Trademarks in accordance with the terms and provisions of this Agreement,
COMPANY shall indemnify, defend and hold DISTRIBUTOR and its subsidiaries,
affiliates, officers, shareholders, directors, employees, members, managers,
agents, successors and assigns harmless from and against any and all claims,
demands, liabilities, causes of action, damages, costs (including reasonable
attorneys’ fees and disbursements) and judgments made or incurred by or found






(77)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(78)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(79)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 26
 









against any of them resulting from or arising out of any claim or suit
alleging infringement by COMPANY or its affiliates, through any of the
Trademarks or otherwise.


8.             Indemnification


8.01        Indemnification by
DISTRIBUTOR - DISTRIBUTOR agrees to indemnify, defend and hold COMPANY,
its subsidiaries, affiliates, officers, directors, members, managers,
stockholders, employees, agents, successors and assigns harmless from and
against any and all claims, demands, liabilities, causes of action, damages,
costs (including reasonable attorneys’ fees and disbursements) and judgments
made or incurred by or found against any of them, resulting from or arising out
of:


(a)           Any
breach or default by DISTRIBUTOR of any term or provision of this Agreement; or


(b)           Any
negligent act or negligent omission or willful misconduct of DISTRIBUTOR in
respect of DISTRIBUTOR’s performance of its obligations under this Agreement.


8.02        Indemnification by
COMPANY – COMPANY agrees to indemnify, defend and hold DISTRIBUTOR, it
subsidiaries, affiliates, officers, directors, members, managers, stockholders,
employees, agents, successors and assigns harmless from and against any and all
claims, demands, liabilities, causes of action, damages, costs (including
reasonable attorney’s fees and disbursements) and judgments made or incurred by
or found against any of them resulting from or arising out of:


(a)           Any breach or default
by COMPANY of any term or provision of this Agreement.


(b)           Any
breach or default by COMPANY of any term or provision of any agreement between
COMPANY, on the one part, and an Operator or a supplier of the Proprietary
Products, on the other part, or any negligent or willful act or omission of
COMPANY, or any of its employees or agents, in respect of the purchase, resale,
distribution, storage or delivery of the Proprietary Products or the COMPANY’s
performance of its obligations under this Agreement; and


(c)           Claims
by any franchisee of COMPANY and/or Operator that may arise from DISTRIBUTOR
ceasing further sales to such franchisee or other Operator under this Agreement
at the direction of COMPANY.



 27
 









(d)           Claims
by any franchisee of COMPANY and/or Operator that may arise from COMPANY’s role
in the distribution/product procurement process or the use or allocation of
funds collected by COMPANY from DISTRIBUTOR.


8.03        Limitation of
Liability; Disclaimer of Warranties - NOTWITHSTANDING SECTIONS 8.01 AND
8.02 TO THE CONTRARY, NEITHER PARTY SHALL IN ANY EVENT BE LIABLE IN CONTRACT,
TORT, STRICT LIABILITY OR OTHERWISE, TO THE OTHER PARTY OR ITS RESPECTIVE SUBSIDIARIES,
AFFILIATES, FRANCHISEES OR OTHER OPERATORS FOR ANY TYPE OF INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES (SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS
OR BUSINESS OPPORTUNITY) ARISING FROM A PARTY’S PERFORMANCE OR FAILURE TO
PERFORM UNDER ANY OF THE TERMS AND PROVISIONS OF THIS AGREEMENT OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ATTRIBUTABLE TO A BREACH OF ANY
TERM OR PROVISION OF THIS AGREEMENT.


COMPANY ACKNOWLEDGES AND AGREES THAT DISTRIBUTOR IS
NOT THE MANUFACTURER OR PRODUCER OF THE PRODUCTS SUPPLIED BY DISTRIBUTOR.  IN NO EVENT SHALL DISTRIBUTOR BE LIABLE WITH
RESPECT TO ANY CONDITIONS, DEFECTS, DEFICIENCIES, DANGERS, FAULTS OR FAILURES,
OF ANY KIND, IN OR RELATING TO ANY PRODUCTS SUPPLIED BY DISTRIBUTOR EXCEPT,
SUBJECT TO THE LIMITATIONS STATED IN THIS AGREEMENT, TO THE EXTENT OF
DISTRIBUTOR’S ACTUAL NEGLIGENCE IN ITS HANDLING OF SUCH PRODUCTS.  EXCEPT AS EXPLICITLY
PROVIDED IN THIS AGREEMENT,  DISTRIBUTOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.


8.04        Third Party Claims
- The indemnities in this Section 8 are contingent upon: (i) the indemnified
party promptly notifying the indemnifying party in writing of any action or
other proceeding which may give rise to a claim for indemnification hereunder;
unless such failure to promptly notify does not materially prejudice the claim;
(ii) the indemnifying party being allowed to control the defense and settlement
of such claim; and (iii) the indemnified party reasonably cooperating with the
indemnifying party (at the indemnifying party’s expense) in providing
information relevant to the defense or settlement of a claim. The indemnified
party shall have the right, at its option and expense, to participate in the
defense of any action or proceeding through counsel of its own choosing.



 28
 









9.             Insurance


9.01        DISTRIBUTOR’s Insurance
- During the term of this Agreement and for a period of one (1) year
thereafter, DISTRIBUTOR shall purchase and maintain, at its sole cost and
expense, the following insurance coverage:


(a)           commercial
general liability insurance and products liability coverage with broad form vendor
endorsement, which specifically insures all liabilities of DISTRIBUTOR to
COMPANY and Operator under this Agreement, to the extent afforded by normal ISO
policy forms and definitions, with all such insurance coverage providing for
combined single limit bodily injury/property damage liability of not less than [CONFIDENTIAL](80); and


(b)           commercial
automobile liability insurance coverage providing for combined single limit
bodily injury/property damage liability of not less than [CONFIDENTIAL](81).


All such insurance shall be provided by insurance
companies which are licensed and authorized to do business in the United States
of America, shall be occurrence based policies and which insurance companies
are reasonably satisfactory to COMPANY. 
DISTRIBUTOR agrees to deliver to COMPANY, on or prior to the Effective
Date, certificates of insurance evidencing the existence of all the above
insurance coverage and naming COMPANY as an additional insured under such
policies.  The certificates shall contain
an agreement by the insurance carrier to notify COMPANY, in writing, at least
thirty (30) days prior to the date of any cancellation or change in such
insurance coverage.


9.02        COMPANY’s Insurance
- During the term of this Agreement, and for a period of one (1) year
thereafter, COMPANY shall purchase and maintain, at its sole cost and expense,
commercial general liability insurance and products liability coverage, and a
contractual liability endorsement which specifically insures all liabilities of
COMPANY to DISTRIBUTOR under this Agreement, to the extent afforded by normal
ISO policy forms and definitions, with all such insurance coverage providing
for combined single limit bodily injury/property damage liability of not less
than [CONFIDENTIAL](82). All such insurance shall be
provided by insurance companies which are licensed and authorized to do
business in the United States of America, and which are 






(80)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(81)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.


(82)    Confidential treatment has
been requested for the redacted portion. 
The confidential, redacted portions have been filed separately with the
SEC.



 29
 









reasonably satisfactory to DISTRIBUTOR. COMPANY agrees to deliver to
DISTRIBUTOR, on or prior to the Effective Date, a certificate of insurance
evidencing the existence of all the above insurance coverage and naming
DISTRIBUTOR as an additional insured under such policies. The certificate shall
contain an agreement by the insurance carrier to notify DISTRIBUTOR, in
writing, at least thirty (30) days prior to the date of any change in such
insurance coverage.


10.          Representations and
Warranties


10.01      Representations and
Warranties of DISTRIBUTOR - DISTRIBUTOR hereby represents and warrants
to COMPANY as follows:


(a)           DISTRIBUTOR is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Nebraska. DISTRIBUTOR has the requisite power to own
properties, to carry on its business as now being conducted by it, and to
execute, deliver and perform this Agreement.


(b)           This
Agreement is, when executed and delivered by DISTRIBUTOR and by the COMPANY,
the valid and binding obligation of DISTRIBUTOR enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors’ rights generally, and further subject to general equity principles.


(c)           The
execution, delivery and performance by DISTRIBUTOR of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default under (or an event which with due notice or lapse of time, or both,
would constitute a breach of or default under), (i) the certificate of
incorporation, as amended to date, of DISTRIBUTOR, (ii) any judgment, order,
decree, ruling or injunction applicable to DISTRIBUTOR, or (iii) any contract
or agreement between DISTRIBUTOR and any third party.


(d)           There
is no action, suit or proceeding pending or, to the knowledge of DISTRIBUTOR,
threatened against DISTRIBUTOR which, if decided adversely to DISTRIBUTOR, may
prevent the consummation of the transactions contemplated by this Agreement.


10.02      Representations
and Warranties of COMPANY - COMPANY hereby represents and warrants
to DISTRIBUTOR as follows:



 30















(a)                                  COMPANY
is a limited liability COMPANY duly organized, validly existing in good
standing under the laws of the State of Delaware. COMPANY has the corporate
power to own properties, to carry on its business as now being conducted by it,
and to execute, deliver and perform this Agreement.


(b)                                 This
Agreement is, when executed and delivered by COMPANY and DISTRIBUTOR, the valid
and binding obligation of COMPANY enforceable against it in accordance with its
terms, except as may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors’ rights
generally, and further subject to general equity principles.


(c)                                  The
execution, delivery and performance by COMPANY of this Agreement and the
consummation of the transactions contemplated hereby do not and will not
violate, conflict with, result in a breach or termination of, or constitute a
default under (or an event which with due notice or lapse of time, or both,
would constitute a breach of or default under), (i) the certificate of
formation or operating agreement, as amended to date, of COMPANY, (ii) any
judgment, order, decree, ruling or injunction applicable to COMPANY, or (iii)
any contract or agreement between COMPANY and any third party.


(d)                                 There
is no action, suit or proceeding pending or, to the knowledge of COMPANY,
threatened against COMPANY which, if decided adversely to COMPANY, may prevent
the consummation of the transactions contemplated by this Agreement.


(e)                                  The
details of the purchasing arrangement, including the purchase and resale of
products by COMPANY, have been disclosed to its Operators as required by law.


11.                               Notices
- Any notice or other communication to be given under this Agreement by one
party to the other shall be in writing and delivered by overnight messenger
service, or delivered by telecopy or facsimile transmission, or sent by United
States registered or certified mail, postage prepaid, addressed as follows:


	
  If to DISTRIBUTOR:

  	
   

  	
  Lincoln Poultry and Egg Company

  
	
   

  	
   

  	
  2005 M Street

  
	
   

  	
   

  	
  Lincoln, Nebraska 68510

  
	
   

  	
   

  	
  Attention:

  	
  Kim Brown, President

  
	
   

  	
   

  	
   

  	
  Neal Lyons, CFO

  



 



 31
 









 


	
  

  	
   

  	
  FAX: (402) 477-1800

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to COMPANY:

  	
   

  	
  TCBY Systems, LLC

  
	
   

  	
   

  	
  2855 E. Cottonwood Parkway, Suite 400

  
	
   

  	
   

  	
  Salt Lake City, UT 84121-7050

  
	
   

  	
   

  	
  Attention: Purchasing Director

  
	
   

  	
   

  	
  FAX: (801) 736-5941

  



 


or to such other addresses as may be communicated in writing by either
party to the other as provided hereunder. 
Notices shall be deemed to have been given when received.


12.                               Force Majeure - Notwithstanding any
term or provision contained in this Agreement to the contrary, it is understood
and agreed that DISTRIBUTOR will not be responsible or liable in any manner
whatsoever for the failure by it to sell and/or deliver the Products or
otherwise perform any obligation under this Agreement or otherwise, and COMPANY
will not be responsible or liable in any manner whatsoever for the failure by
it to purchase and accept, the Products, if such failure is due to fire,
strike, accident, explosion, riot, rebellion, terrorist action or threat,
flood, embargo, war, interruption or delay in transportation, epidemic,
pandemic, shortage of raw materials, acts of God or government (including, but
not limited to, laws, regulations and restrictions of all kinds), or any other
causes or contingencies of any character (other than lack of funds) beyond the
reasonable control of DISTRIBUTOR or COMPANY. 
Nothing expressed or implied in this Section 12 shall excuse the
non-performance or delay in performance of any payment obligation of the
COMPANY or DISTRIBUTOR, any affiliate or any Operator.


13.                               Relationship of Parties - This
Agreement is not intended and shall not be construed to constitute either party
as the joint venturer, partner, agent or legal representative of the
other.  Neither party has any authority,
whether express, implied, or apparent, to assume or create any obligations on
behalf of the other.


14.                               Entire
Agreement; Modifications - This Agreement and the Schedules attached
hereto and made a part hereof, constitute the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersede all prior proposals, negotiations, communications, representations,
written or oral agreements and understandings between the parties with respect
to the subject matter hereof. No modification of any term or provision of this
Agreement shall be enforceable unless embodied in a writing executed by all
parties to this Agreement.



 32
 









15.                               Severability
- The provisions of this Agreement are severable, and the invalidity or
unenforceability of any term or provision hereof shall not operate to
invalidate or render unenforceable the remaining terms and provisions which are
valid and enforceable.


16.                               Waivers
- The waiver by either party hereto of any of its rights or breaches of the
other party under this Agreement in a particular instance shall not be
construed as a waiver of the same or different rights or breaches in subsequent
instances. All remedies, rights, undertakings and obligations, hereunder shall
be cumulative and none shall operate as a limitation of any other remedy,
right, undertaking or obligation hereof.


17.                               Assignment:
Successors and Assigns - Except as hereinafter set forth, neither of
the parties may assign this Agreement without the prior written consent of the
other, except that either party shall have the right to assign this Agreement
to a parent, subsidiary or affiliated COMPANY, or may assign this Agreement in
conjunction with the sale or transfer of all or substantially all of its stock
or assets by way of a sale of stock or assets, a merger or other business
reorganization, without the prior consent of the other party; provided,
however, that any such assignment shall not relieve the assigning party from
any liability or obligation under this Agreement that accrues prior to the
assignment and notice thereof to the other party and provided further, that in
the event of a transfer of all or substantially all of the stock or assets of a
party or merger or other business reorganization, the surviving entity or
transferee is at least as financially strong as the assigning or original
party.  The assigning party shall give
notice of such assignment to the other party. The provisions of this Agreement
will be binding upon and will inure to the benefit of the parties and their
respective successors and assigns. 
DISTRIBUTOR may assign its accounts receivables, and related contract
rights, in connection with its accounts receivable financing and
securitization.


18.                               No
Offer - The submission by DISTRIBUTOR to COMPANY of this Agreement
shall have no binding force or effect, shall not constitute an offer to sell
the Products, nor confer any right or impose any obligation upon either party
until executed by both parties.


19.                               Confidentiality
- Any proprietary information supplied by either party to the other party
(whether set forth in writing, on any data base or in any other medium),
including, but not limited to information on customer and supplier identity or
any other customer or supplier information, purchasing volumes and history,
pricing, purchasing specifications, and product market results (the “Confidential
Information”), is and shall remain confidential and proprietary information of
the disclosing party, and valuable trade secrets owned solely by the disclosing
party. The recipient party of any Confidential Information shall not disclose
any such Confidential Information to any third person or entity without the
prior written consent of the disclosing party in every instance, and shall not
use any such Confidential Information, nor permit



 33
 









any such Confidential Information to be used, for any reason other than
to fulfill the terms of this Agreement; provided, however, that either party
and its respective successors and assigns may (i) disclose any Confidential
Information to the extent compelled by law, regulation, rule, subpoena, or
other process of law and (ii) provide invoices, and any information relating to
historical payments or payments due or to become due from franchisees or
Operators hereunder to its auditors and legal counsel, and to present and
potential financing sources and rating agencies 
and their respective auditors and legal counsel). The parties’
obligations under this Section 19 shall not apply to any of the Confidential
Information delivered or made available to them by the other party which the
recipient of the Confidential Information can reasonably establish (a) was
known to the recipient party at the time the Confidential Information was
disclosed or made available to the recipient party; (b) was known to the public
at the time the Confidential Information was disclosed or made available to the
recipient party; (c) becomes known to the public after the date the
Confidential Information was disclosed or made available to the recipient party
through no fault or breach of this Section 19 by the recipient party; (d) is
given to or made available to the recipient party by a third party who has a
lawful right to disclose the Confidential Information to the recipient party;
or, (e) is independently developed by the Recipient party without reference to
the Confidential Information.


20.                               Arbitration -
All actions, disputes, claims or controversy with the exception of seeking an
injunction, now existing or hereafter arising between DISTRIBUTOR and COMPANY,
including, but not limited to any action, dispute, claim or controversy arising
out of this Agreement or the delivery by DISTRIBUTOR of any Products to
COMPANY  (a “Dispute”) shall be resolved
by binding arbitration in Salt Lake City, Utah, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and, to
the maximum extent applicable, the Federal Arbitration Act.  Arbitrations shall be conducted before one
arbitrator mutually agreeable to COMPANY and DISTRIBUTOR.  If the parties cannot agree on an arbitrator
within thirty (30) days after the request for an arbitration, then each
party will select an arbitrator and the two arbitrators will select a third who
shall act as the sole arbitrator of the dispute.  Judgment on any award rendered by an
arbitrator may be entered in any court having jurisdiction.  All fees of the arbitrator and other costs
and expenses of the arbitration shall be paid by DISTRIBUTOR and COMPANY
equally unless otherwise awarded by the arbitrator.  Disputes between DISTRIBUTOR and any Operator
other than COMPANY shall not be subject to arbitration under this section 20.


21.                               Governing Law- This Agreement shall be
deemed executed in Salt Lake City, Utah and shall be governed by the construed
in accordance with the laws of the State of Utah as applicable therein.


22.                             Miscellaneous
- The section and paragraph headings contained in this Agreement are for
reference only and shall not be considered as substantial parts of this
Agreement. The use of the singular or plural from in



 34
 









this Agreement shall include the other form and the use of the
masculine, feminine or neuter gender shall include the other gender.


23.                               Counterparts;
Facsimile- This agreement may be executed in one or more counterparts,
each of which shall constitute an original but all of which, when taken
together, shall constitute but one agreement binding on all parties hereto,
notwithstanding that all of the parties are not signatory to an original or same
counterpart.  The parties may execute and
deliver this Agreement by facsimile transmission.


[Remainder
of page intentionally blank.  Signature
page and Schedules follow.]



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IN WITNESS WHEREOF, each
of the parties hereto has caused this Agreement to be executed and delivered by
its duly authorized officers on the day and year first above written.


	
  

  	
  TCBY SYSTEMS, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Ward

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: Executive Vice President, Chief Legal Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LINCOLN POULTRY AND EGG COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neal Lyons

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its: Chief Financial Officer

  	
   

  
							



 



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SCHEDULE 1


LINCOLN POULTRY DISTRIBUTION AGREEMENT


Product
Categories


Frozen Yogurts- Soft Serve and Hand Dipped


Hand Dipped Yogurts


Yogurt Cakes and Pies


Confectionary Fruits, Nuts, Toppings and Cones


Miscellaneous Dessert Items


Snacks


Beverages including Fountain Syrup


Packaging & Paper Items


Cleaning Supplies


Miscellaneous Items-as agreed to by and between Company and Distributor



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Schedule
2


Distribution Map



 38
 









Schedule 3


[Confidential Treatment has been
requested for this Schedule.  The
confidential redacted portions have

been filed separately with the SEC]



 39
 









Schedule 4


Product Listing


[Confidential Treatment has been
requested for this Schedule.  The confidential
redacted portions have

been filed separately with the SEC]



 40
 









Schedule 5


Inbound Quantity Matrix


[Confidential Treatment has been
requested for this Schedule.  The
confidential redacted portions

have been filed separately with the SEC]



 41
 









Schedule 6


[Confidential Treatment has been
requested for this Schedule.  The
confidential redacted portions

have been filed separately with the SEC]



 42
 









Schedule 7


[Confidential Treatment has been
requested for this Schedule.  The
confidential redacted portions

have been filed separately with the SEC]



 43